Employer Obligations When Employee On Leave Gives An Indefinite Return Date

March 20, 2017

The Massachusetts Commission Against Discrimination (“MCAD”) has held that an employer engaged in unlawful disability discrimination when it terminated an employee whose medical leave had ended and who could not provide a definite return to work date. The MCAD found that the employer had an obligation to engage in the interactive process to determine if extending the requested leave was a reasonable accommodation for the employee’s disability.

What should an employer do when an employee whose medical leave has ended cannot provide a return to work date? Fire the employee? Not so fast. The MCAD recently found that it was unlawful for an employer to terminate such an employee without engaging in the interactive process to determine if an extension of the employee’s leave would be reasonable.

Employee was a loan coordinator for a bank. In September 2009, Employee went on an approved 12-week Family and Medical Leave Act (FMLA) leave to give birth. The leave was scheduled to end on November 30, 2009. In October, following delivery of her child, Employee was diagnosed with post-partum depression and notified Employer that she would not be able to return to work on November 30, as planned. Employee provided Employer with documentation from her medical providers stating that, due to her condition, she would be out of work indefinitely.

On December 11, Employer advised Employee that, because her latest documentation did not provide a return date, her employment would be terminated if she did not return to work by December 21. In response, on December 17, Employee called Employer and told her supervisor that she hoped to return to work by mid-January. The same day, Employee's attorney addressed a letter to Employer requesting a short extension of Employee’s leave as an accommodation to her post-partum depression, pending upcoming evaluations from Employee’s medical providers in mid-January. The letter stated that after Employee’s mid-January appointments, Employee would advise Employer whether a definite return date could be set.

On December 22, Employer terminated Employee without further discussion with Employee because she had not returned to work by December 21 and had not provided a return to work date.

The MCAD held that in terminating employment without engaging in dialogue about her return to work date, Employer discriminated against Employee on the basis of disability. The MCAD found that once Employee identified her disability and requested an extended leave, Employer was obligated to engage in a dialogue with Employee to determine if the extended leave was a reasonable accommodation. Here, Employer mistakenly relied on the 12-week period required by the FMLA as a measure of reasonableness and assumed that all requests for leave beyond the 12-week period were automatically unreasonable. In addition, Employer failed to produce any evidence that an extension of Employee’s leave until mid-January would impose an undue burden on its operations or finances.

This decision reminds employers not to be rigid in administering medical leave. In some circumstances, an extended leave — even beyond the FMLA’s 12-week limit — may be a reasonable accommodation.

Further, the decision demonstrates the importance of the interactive process. Even when an employee is unable to provide a return to work date following exhaustion of medical leave, employers have an obligation to continue the interactive process to determine if a reasonable accommodation is possible. In this case, Employer should have extended the Employee’s medical leave for a couple of weeks because there was at least a suggestion that she could have provided a return date by then, unless doing so would have imposed an undue burden. If Employee could not provide a return date by then and had no prognosis for improvement, the obligation to extend her leave likely would have ended.

In short, the decision shows the importance of flexibility, reasonableness, and interaction in dealing with employees who are unable to return from medical leave.